A week ago, on Timothy B. Lee's article on Forbes about the corrupt practice of plea bargains, one poster asked, “What part of the US Attorney’s prosecution of Aaron Swartz was incorrect?”

Here is what I wrote in response:

That’s an excellent question, and it deserves a thoughtful answer.

The logic of our system of law operates upon an axiom that dates back some 3760 years, when Hammurabi of Mesopotamia wrote down one of the first collections of codified laws. The underlying axiom is that codified laws and associated punishments are the most appropriate and efficacious method of regulating the behavior of members of a human society. We can call this concept the Hammurabic Method of Social Regulation, more popularly known as Law and Order.

In mathematical logic, all the results of an otherwise logical inference or procedure depend on the validity of the underlying axioms which are adopted on faith and without proof.

There have been a number of rigorous, carefully crafted, and insightful studies of the axiomatic beliefs that undergird our system of law. Some of these are mathematical studies which gave rise to the modern branch of mathematics known as Chaos Theory. Some of these are sociological studies which dig into the roots of violence in our culture.

Have you ever asked yourself, “Why do we believe in the Rule of Law?”

From the point of view of a mathematician, scientist, or systems analyst, it’s a fascinating question to study.

I happen to be one of the few souls who have taken the time and effort to review the research into this curious question, using the most powerful tools for thought that are necessary for any critical thinking exercise requiring a rigorous combination of mathematical, scientific, and analytical thinking.

I’ll skip here to the bottom line: I disbelieve in the Hammurabic Method of Social Regulation. I have come to disbelieve in it because I discovered it is derived from an axiomatic foundation that has been patently falsified by careful scientific and mathematical analysis dating back for well over a century of modern analytical thinking, and before that to much earlier insights prior to the advent of modern scientific and mathematical method.

Aaron Swartz fell into a HOLE in our culture. It’s a gigantic HOLE that has bedeviled humankind since the dawn of civilization.

See “The HOLE Story” which briefly outlines the parameters of the technical analysis and highlights the primary clues which led me to my startling conclusion.

We need a national dialogue on the practice of piling on charges to coerce defendants into accepting unjust plea bargains.

The prosecution was apparently in the business of annihilation. Swartz faced spiritual annihilation and financial annihilation, with no viable means of escape. To my mind, our justice system is out of control. The prosecution took leave of their senses. Unfortunately, this kind of tragedy is all too commonplace, and most of the time goes unreported.﻿

The suicide of Aaron Swartz in the face of the appalling over-reach of unchecked discretionary prosecutorial power highlights a much larger problem that pervades our legal system.

The entire US legal system (including criminal, civil, and family court divisions) is routinely used in an outrageously abusive manner.

Those who are traumatized, stigmatized, or victimized by such shenanigans within the legal system may suffer what has come to be called Legal Abuse Syndrome.

In the field of Medicine, every proposed treatment or cure has to be carefully studied and reviewed to ensure that it has demonstrated therapeutic value, and does not inadvertently spread, exacerbate, or even cause the malady it sets out to treat. In the medical literature, a treatment is called “iatrogenic” if it is counter-productive to the primary objective of curing disease.

The field of Law does not employ such safeguards, and as a result a substantial fraction of our public policies and practices, operating under the color of law, turn out to be iatrogenic — ineffective at best and counter-productive at worst.

Alan Simpson, the retired Senator from Wyoming, spent some three decades in Congress, during which time he helped craft and enact a great deal of legislation. But after he retired, he remarked that during his tenure in Washington politics, he discovered a law, the way a scientist would discover a natural law. Simpson said he discovered the Law of Unintended Consequences, meaning that the actual outcome of legislation, passed in good faith with an expectation of curing one of society’s ills, frequently turned out to have unanticipated, unexpected, and undesirable consequences. In science, if one is relying on a theoretical model, and the actual outcome of an experiment does not jibe with that predicted by the model, one is obliged to discard the model as unreliable.

Our governmental systems are rife with unreliable models which give rise to unwise practices, many of which are ineffective at best and counter-productive at worst. We have built governmental systems that lack viable safeguards against iatrogenic treatments of many of our most problematic social ills.

Here is an example of the kind of scholarly article one might find on JSTOR (which recently relaxed its policies to make many more of them freely available without a costly institutional subscription).

Punishment and Violence: Is the Criminal Law Based on One Huge Mistake? by James Gilligan, Harvard University; published in the Journal of Social Research, Fall 2000.

"A more sensible idea would be to require the state to provide the defence with all its evidence—particularly any exculpatory evidence—during the plea process, rather than just during or before trial."

Hmm... Not sure where you are getting your law from, but you are mistaken. Prosecutors are required to turn over exculpatory and impeachment evidence to the defense as a Due Process matter (Brady v. Maryland, Giglio v. United States, and Jencks v. United States). Also, under the Federal Rules of Criminal Procedure, Rule 16, disclosure of all material evidence in the prosecutor's possession occurs "upon a defendant's request". Most state rules of criminal procedure say the same thing. All a defendant has to do to get this information is . . . ask.

The 90% plea bargain rate in our federal
criminal justice system means our federal criminal justice system is not a
system of justice, but an inmate factory. In most cases, decades long prison
sentences are all out of proportion to the underlying crime and their sole
purpose is to force people accused of a crime to sign a plea agreement - even
if they do not think they did anything wrong. Risking decades in prison is just
not worth it. Plus, who has hundreds of thousands of dollars to fight the
federal government with its practically limitless resources? This
is a dishonest and dishonorable way of obtaining convictions and it costs the
American taxpayers billions of dollars annually.

A few more statistics for consideration:

25% - The recidivism rate for inmates who complete the Residential Drug Abuse
Program in federal prisons, versus the 70% recidivism rate for those who don’t.
This program would be beneficial for all prison inmates, not just those with drug use problems, and should be made available to all prison inmates. In fact, why not use these programs and deferred adjudication to keep people from being sent to prison in the first place. Also, why not have “results based pay” for all prison workers - i.e., the lower the recidivism rate, the higher the pay.

0% - The number of investigations the Department of justice conducts where they make the results publicly available.

5% and 25% - America had 5% of the world's population and 25% of the world's prisoners.

90% of homeless and runaway children are from fatherless homes. [US D.H.H.S.,
Bureau of the Census]

63% of youth suicides are from fatherless homes. [US D.H.H.S., Bureau of the
Census]

85% of children who exhibit behavioral disorders come from fatherless homes.
[Center for Disease Control]

We should think long and hard before we take a parent from their family, even
if they have committed a crime. Therapy has proven to be much more effective at
reducing recidivism rates than long prison sentences. In the process, people
learn how to become better parents and so help reduce the chance their children
will commit crimes.

I do not think the prosecutor committed a crime in
handling the Aaron Swartz case. Though she certainly should be fired for her
selfish determination to put her career ahead of everything else. The problem
is systemic, federal criminal penalties need to be reassessed and much more
emphasis needs to be placed on programs that keep people out of prison. Of
course, the private prison industry and prison workers unions will continue to
spend millions lobbying Congress to keep this from happening. In other words,
people can rob you with a pen just as easily as they can rob you with a gun.

Plea bargain is a violation of everything that western rule of law stands for. It forces innocent people to make a devils choice of confessing something they didn't do or take the chance of a losing in a trial and facing severe punishment. Plea bargain should be banned ASAP.

It is my understanding that the charges against Swartz went far beyond the one criminal activity that the author cited here. Did Swartz apologize and return the stolen property in the other cases? Did the victims of his crimes accept his apologies in those cases, too? Those questions seemed to have slipped the attention of the author.

Furthermore, Swartz likely had a very good idea as to whether he actually had committed the criminal acts he was being charged with. The author argues that Swartz was unable to determine whether the prosecutors had enough evidence to convict him or whether the evidence was too weak to convict him. It was Swartz that was gaming the system.

If this were a businessman who had defrauded his clients, one of whom forgave him, and committed suicide when faced with prosecution for a long list of other crimes, would we be having the same heart-wrenching discussions of the fairness of it all?

Schwartz did not steal anything. He automated the download process of free, publicly available and publicly funded research documents. The only thing he did that could remotely be considered a crime was enter an unlocked storage closet (that was home to a vagrant) and install a router.

JSTOR the alleged victim told the FBI that they did not consider the downloading of the documents a crime and did not want to pursue charges. There was not fraud. No one was deprived of their property.

Anyone sane would have said that at worst he committed a misdemeanor trespassing. For this the "Justice" department pursued charges with about 30 years worth of jail time.

The description I read of his activities were a list of several different cases, of which JSTOR was only one. Did he receive absolution from his other victims? Moreover, you misstated his action. The material he downloaded was not "publicly available". It was created by organizations at a cost to them and provided the information for a fee.

I made no argument that Swartz committed fraud. My argument that this incident would have not received the same attention if it were another crime.

No, all 13 charges were for the JSTOR event. The article doesn't clearly describe what happened.

JSTOR provides access to publicly & freely available academic papers as a collection. They charge Universities and individuals for access to freely/publicly available documents. Most top universities provide their students with accounts. Schwartz objected to the fact that JSTOR was acting as a gate keeper to freely available documents that were more often then not publicly financed.

He accessed a utility closet at MIT (where he was either a student or employee, i forget), installed a router on the network and ran software that downloaded a few million of the documents.

The software did not "hack" anything, it downloaded files that were not protected by JSTOR in the first place.

Initially JSTOR saw a large amount of traffic on their network and thought there was a hacker. They contacted the police, it bubbled up to Feds.

JSTOR subsequently told the Feds that there was no crime, and they were not interested in pursuing charges. The Feds ignored them.

They provide access to public and copyrighted documents, that they assembled together in a database at their expense. If Swartz wanted to distribute the publicly available information, why didn't he gather it together himself? The answer, of course, is it would be take too much time and effort. It was much easier to steal the database. And he distributed BOTH open and copyrighted documents. The distribution of the copyrighted documents does serious harm to the publishers of that material, who depend on the revenue from JSTOR to support their activities.

The documents were not "protected"?? Is that the same justification a car thief uses if he steals your car when you leave the keys in it? Sounds familiar. I doubt that his lawyer would be so ignorant as to use that lame excuse.

According to the news reports, JSTOR stated that they would take no civil action. Their lawyers have no authority to judge whether Swartz committed a crime or not. That is the job of the judicial system. MIT did decide to pursue the matter.

They provide access to public and copyrighted documents, that they assembled together in a database at their expense. If Swartz wanted to distribute the publicly available information, why didn't he gather it together himself? The answer, of course, is it would be take too much time and effort. It was much easier to steal the database. And he distributed BOTH open and copyrighted documents. The distribution of the copyrighted documents does serious harm to the publishers of that material, who depend on the revenue from JSTOR to support their activities.

The documents were not "protected"?? Is that the same justification a car thief uses if he steals your car when you leave the keys in it? Sounds familiar. I doubt that his lawyer would be so ignorant as to use that lame excuse.

According to the news reports, JSTOR stated that they would take no civil action. Their lawyers have no authority to judge whether Swartz committed a crime or not. That is the job of the judicial system. MIT did decide to pursue the matter.

All of the documents were copyrighted. Schwartz was also legally entitled to download them from JSTOR. I believe he was also legally entitled to distribute all of them, but he did not. What he did was download too many too quickly.

JSTOR's objection was only that he downloaded too many documents too quickly against the TOS. I don't think there is a crime here, at worst this should be a civil action, but even if I'm wrong there definitely isn't a felony worth 13 federal charges and 32 years.

The security expert from the trial said the following:

"If I had taken the stand as planned and had been asked by the prosecutor whether Aaron’s actions were “wrong”, I would probably have replied that what Aaron did would better be described as “inconsiderate”. In the same way it is inconsiderate to write a check at the supermarket while a dozen people queue up behind you or to check out every book at the library needed for a History 101 paper. It is inconsiderate to download lots of files on shared wifi or to spider Wikipedia too quickly, but none of these actions should lead to a young person being hounded for years and haunted by the possibility of a 35 year sentence.'"

David Segal wrote:

"This makes no sense. It's like trying to put someone in jail for allegedly checking too many books out of the library."

The NY Times wrote:

"A respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free."

BTW, JSTOR only stated that their lawyers would not sue Swartz in this matter. They made no comment about a potential lawsuit against MIT, the "big pockets" participant. In return for the use of the JSTOR data base, MIT has to agree to protect limit access to authorized persons, and to pay a fee to JSTOR, depending on usage. It is very likely that JSTOR believes that MIT failed in that obligation and will ask for damages in court. MIT, not JSTOR will ultimately pay for Swartz' s actions. That is why MIT decided to join the Feds in pursuing Swartz.

Say MIT settles for $1M. Divide that up among the their 4000 students and have them pay for it.

It was his stated intention to freely distribute the documents, even if he was caught downloading them before he could distribute them.

In using JSTOR he explicitly agrees NOT to distribute the documents to people without authorization.

Whether you think that attempting to steal a database for an unauthorized use is a crime or not has no significance. Swartz was knowingly breaking a law. He should have completed his protest of the law by going to jail.

It is highly preposterous to suggest that prosecutors are singularly interested in securing convictions or putting people in jail. Representing the government means working long hours at great financial sacrifice in order to be a part of a system that is far from perfect but is designed to be free and fair through adversarial representation. The ethics and requirements of pre-plea discovery are a bit blurry- they are one in many parts of the system that could be improved and rendered more consistent.

There are some unscrupulous and lazy prosecutors who may be interested in notching up wins, just as there are some unscrupulous and lazy members of every profession, including pundits who impugn entire professions without any support.

I'm wondering why you brought in a pyschologically troubled person into your blog entry.
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People who commit suicide are those who only think of themselves.
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You could have used a CEO, inside trader, or how the SEC settles cases with companies that they investigate.
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NPWFTL
Regards

What kind of life do you suspect one has after getting out of jail at the age of 50+? I keep reading people refer to depression which I completely disagree with. A smart 20 year old looked at his 30yr sentence and went, 20 + 30 = 50yrs with no work record and no degree. What am I going to do when I get out? Everyone I know will be dead.

Then after looking at the facts decided that living his life in jail and then living a life worse then jail there after decided to take his life. It doesn't at all seem the action of a depressed man. It seems a pretty intelligent choice.

CEOs, insider traders, and companies being investigated by the SEC are utterly unsympathetic characters; no one much cares if they serve 6 months or 60 years in prison. When attempting to highlight potential inconsistencies and injustices engendered by the current plea bargaining system, an astute journalist would prefer a shaggy haired digital Robin Hood any day.

"but before a defendant agrees to plead guilty, he ought to know whether the state holds four aces or a busted flush"... Whattt??? Whose side are you on? Every faculty at disposal should be used to convict criminals, not making their life easier by revealing that you do not have enough evidence to win a trial.

That sure is. But I don't see how revealing evidence or lack of thereof would help there. I am fairly sure there are not many cases where innocent people plead guilty for fear that prosecutors might win at a trial. While there would be overwhelming number of cases where guilty people would not even take a minor sentence (pleading guilty), if they knew that prosecutors do not have enough evidence. Plus, knowing that gives them a tremendous advantage at the trial.

Mr Wizzard,
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You have unwittingly, I presume, defeated your own argument.
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If the prosecutor has insufficient evidence of guilt, the defendant is innocent by simple definition.
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To find a defendant guilty, it is the duty of the prosecutor to provide the court with sufficient evidence of the defendant's guilt beyond reasonable doubt. Failure to do so compels the court to render a judgment of "Not Guilty."
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If the prosecutor does not have enough evidence usually his best choice is to charge no one until law enforcement officers supply him with enough to prove someone guilty beyond the reasonable doubt of the court.

I quite disagree with your assertion of my defeating my own argument. Or, in the same logic, I may claim you have defeated your own, too - under your simplified black and white view, there is also no need to reveal evidence to the accused person before trial - if there is not enough evidence, they should be left to go free and not brought to court at all, if there is enough, no reason for prosecutor to suggest/accept plea, rather press for full trial with full sentence. This does away with plea bargaining altogether - the grey area, where the accused has a guilty conscience, the prosecutor has some evidence, but neither side knows for sure how a trial would go. That is where plea bagraing comes in, and revealing evidence to the accused person gives them an unfair advantage in this "bargain". I would accept this if defendats were also required to fully and truthfully reveal THEIR evidence (i. e. involvement) regarding the prosecuted crime; a thing which is obviously outside the realm of reality.

Luckily I have no personal experience with crime prosecution, but I do not see prosecutors as having any edge over the other side.

Or maybe I misunderstood - are you arguing against the concept of plea altogether?

Anyway, I'd love to play a game of Texas Holdem with you, provided of course you stick to your convictions and reveal to me both of your hole cards before flop.

Dear Mr Wizzard,
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My answer was based upon the current state of criminal law in the US today and my experience there as a prosecutor in courts martial.
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If the current laws dissatisfy you, please express your concerns to your legislators. They - not I - have the ability to change them.
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My game is 5 card stud.
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Regards.

If I were to call the police and tell them that you are raising funds for a terrorist cell by making meth in your basement, would justice be served if (when) every faculty at the state's disposal comes to kick down your door and take you away?

Those pictures of you in an orange wig would look hilarious on a tabloid cover.

Unfortunately there are often cases where innocent people enter a guilty plea - usually because they do not think they have a viable defence and will lose at court. Fear of being judged guilty and having a heavier sentence would lead some people to enter a guilty plea rather than face stiffer penalties. If you think the justice system is perfect and never finds innocent people guilty perhaps you should look into instances where that is not the case.

Well, if you accuse me of a crime, such accusation should be investigated. Using every faculty at disposal. Here I expected some degree of common sense, it does not mean I should be outright dragged to a basement and waterboarded until I confess to anything.

But revealing evidence to accused makes the whole notion of plea bargaing pointless.

Good morning, Mr. Wizzard.
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Yes, sir, I do. In the US military jurisdiction where I worked, this was required by the Uniform Code of Military Justice, (UCMJ), the law in the US armed forces. Had I failed to practice full disclosure, the result upon review (and ALL courts martial are rigourously reviewed) would have been a mistrial. The defendant would have gone free, at least until another trial was ordered. Given rules concerning double jeopardy, it might have been impossible to try the same defendant again. In such a situation, a guilty defendant would go free.
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What this meant in practice is that we court martialed a defendant only when we had 'the goods' on him, solid, incontrovertable evidence beyond reasonable doubt that he had committed the crime.
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Speaking as an officer who could also be ordered to be a defence counsel, a guilty plea in the chain of command where I served was usually the wisest decision for a defendant since he knew he was guilty and he knew that we KNEW he was guilty, prompting at least an attempt at a plea bargain.
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Too, our certainty that we had the right defendant before the court enabled prosecutors to drive hard plea bargains or simply refuse even to consider them. In practice, I doubt that either side gained much of an advantage.
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I'd like to think that I was part of a justice system that was eminently fair, efficient, careful, and just.
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Have a good day.
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Regards.

Thank you for your "insight from the inside". Like I said, I lack personal experience with the issue, and hopefully forever will.

Is there a difference in number of cases settled by a plea in military and civilian jurisdictions? (I understand that evidence disclosure is mandatory in the former and not done in the latter) I still think that it reduces incentive for plea bargaining, to the benefit of defendants. I wonder if there is any data to support or refute this. Of course there are many other differences between military and civil courts that may be of influence, so any discrepancy cannot be accounted for solely by evidence disclosure.

Hi!
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I don't know of any, but would be floored to find there are none.
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Here you surely ask one of the right questions. I hope someone more knowledgeable than myself will answer it to the benefit of both of us. Many folks have an animus against courts martial, holding that they are intrinsically less fair to the defendent than civilian courts. I do not agree with that. A good answer to your question would help in that area, too.
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Thanks for raising this issue. Surely someone following this blog can point both of us in the right direction. I hope they'll take the time to do just that.
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Regards!

Part of problem is embedded in the simple phrase from the second paragraph "prosecutor notches up a win".

They should be public servants concerned with accurately applying the law,: not claiming scalps; not gratifying their own or the publics egos, and not preparing a resume to launch a political career.

Prehaps a solution to the issues in article would be to add a new tool to a judges powers - the abiity to refer a case post sentence to an panel of say 3 other judges to review the background and determine if "sentencing is not in public interest".

This could allow for cases where minimum sentence would be a perverse result (the three strikes cases of stealing socks for example), where limited real harm done even if law broken and needs to be recognised by conviction (Mr Schwartz's) or where some pushy DA has browbeaten a limited education/intellect suspect into accepting a plea bargain before suspect aware of exulpatory evidence (enough reviews for trivial cases should poison the well for the worst cases of politically ambitious prosectors too.)

A few years ban on former prosecutors holding legislative posts might also be useful.

Mr Bystander,
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When you wrote: 'Part of problem is embedded in the simple phrase from the second paragraph "prosecutor notches up a win".', you said a mouthful.
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I, for one, would like to see a study of the differences in plea bargain procedures and results between jurisdictions where prosecutors are elected and jurisdictions where they are appointed by the judiciary.
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Is such a study within the scope of The Economist? I'd like to think so.
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Thank you for introducing this issue. It is pertinent and important to an intelligent discussion of the matter of plea bargains.
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Regards!

Excessive minimum sentencing is one reason why we need a constitutional right to be tried by a jury of fellow citizens who are not obliged to give reasons for their decision.

If the jurors believe that the punishment is likely to be manifestly excessive, they can simply acquit the defendant in the teeth of the "law" and the facts, in which case the acquittal is binding.

"Jury nullification", as this practice is called, is impeccably democratic. It's direct democracy by "sortition": the jurors are a random sample of the electorate. It conforms to the principle that a more extreme decision requires a stronger democratic mandate: it asserts, in effect, that if a law creating a crime is to apply in a particular case, it must not only be passed by the legislative branch and approved by the executive branch, but also cleared by whichever 12 electors make up the jury.

Moreover, jury nullification is essential to the equality of the three branches of government and to the efficacy of the separation of powers as a safeguard of freedom. The legislative branch, by itself, can free the accused by changing the law. The executive branch, by itself, can free the accused by exercising discretion or clemency. But only through jury nullification can the judicial branch, by itself, free the accused. Thus, only with jury nullification can we say that it takes all three branches of government to take away your freedom, but only one to give it back.

But how common is this in a place where juries tend to end up consisting mostly of retired policemen and tabloid-reading old women. THEY CAN BUT THEY USUALLY DON'T.
Partial solution: get rid of peremptory exclusions. Require prosecution and defense counsel to give cause for any exclusions, and make them subject to approval by the judge. "That guy has too many tattoos" or "That girl has a ring in her nose" shall not be acceptable reasons.

Mr Pol,
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Thank you. You ask the right question. I am not a Brit. However, I shall share my understanding of their system in the hope that a good Brit barrister will correct me where I err.
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The Brits have an adversarial system with presumption of innocence, as, of course, does the US. The difference is that the crown, i.e. the government, hires a barrister to prosecute the defendant just as the defendant has another barrister to defend him.
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I'm sure I have not caught all the nuances of the Brit system. Having observed a murder trial at the Old Bailey, I came away impressed with the emphasis on fairness all around. Of course, this was merely one day at one trial in one courtroom. It may rightly be argued that it was in no way representative. However, I think it was.
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Again, thank you for asking a very good question. I fondly hope you will get a more satisfactory and detailed answer.
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Regards.

" Prosecutors will always wield a great deal of power in the American criminal system, but before a defendant agrees to plead guilty, he ought to know whether the state holds four aces or a busted flush."

Using an article hosted by JSTOR to comment on an article about an individual who killed himself because he was being prosecuted for downloading millions of articles from JSTOR... I believe that a certain Canadian singer-songwriter would compare that to rain on your wedding day or, perhaps, to a black fly in your chardonnay.

There is a way to reduce plea bargaining: include a penalty for going to trial and being found guilty. This builds a sentencing bargain into the act of pleading.

I've been involved in plea bargaining. It isn't dirty but it is a game. You have to come up with charges to trade. The issue really is this: do we want the criminal system to rely so much on bargaining?